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1. Current inefficiency of MiBACT. Multiple administrative practices

«I understand, – muttered the doctor, who in truth had not understood – I understand. – […] So saying, he rose from his seat and hunted through the chaos of papers, shovelling the lower ones uppermost with his hands, as if he were throwing corn into a measure (Manzoni 1827, The Betrothed, Chap. III, English Edition: 1844, London James Burns, 17 Portman Street, Portman Square p. 47)».

It is 1628, as narrated by Manzoni for the purpose of describing his century, yet Agnese’s words to Renzo «Signor Doctor […] Azzecca-Garbugli (take good care you do not to call him so!)» who thrusts his hands in the midst of proclamations, to extract his latest trick from a hat; this is the first image that comes to mind when we attempt to reach some clarity as we delve into the sea of legislative provisions that have been enacted (especially1) from ’75 onwards to regulate the delicate matter of managing Italy’s cultural heritage. Considering that we do not wish to be unfair or inaccurate with the past, we must reluctantly point out that those calm intervals seem to thin out as we get closer to the present time. Indeed, it is enough to open any updated legal manual on the laws governing cultural heritage or, for the more daring, to browse the MiBACT website, to realise the flood of legislation that continues to affect all individuals working in the field of cultural heritage. The inevitable consequence is the creation of an increasingly slow and cumbersome bureaucratic organisation that, as with Renzo and Lucia, becomes progressively incapable of guaranteeing citizens the protection of their interests and rights, as recognised at a constitutional level today. It is not wrong, therefore, that in one of these manuals dating back to 2013, and in reference evidently to the latest legislative amendments at that time, to read that, «the passage of time, short but inexorable, marks, for the Ministry of Cultural Heritage and Activities [Ministero dei beni e delle attività culturali], the intensification of a sort of interventionist schizophrenia by the lawmaker that, at the rate of two years at a time, tries to solve the cultural issue of our country with yet another ministerial structure reform (Ferretti, 2013, p. 92; see also Barbati, Cammelli, Sciullo 2011; Crosetti, Vaiano 2011; Volpe 2013.)», more than ever an exact prognosis as confirmed by recent Ministerial Decree No. 44/2016 aimed at «reorganising the Ministry of Cultural Heritage and Activities and Tourism [Ministero dei beni e delle attività culturali e del turismo], without new or increased charges for public finance, at reorganising, also by eliminating, merging or grouping, the Ministry’s executive offices, even at a general level», so replacing the previous reorganisation under the Prime Minister Ministerial Decree No. 171/2014.
Analysing the new arrangement, responsibilities and functions of each body attributed to MiBACT’s organisational structure is not the purpose of this paper, not just for the obvious reason that it is intended as an article and not as the magnum opus of the author, but also in consideration of the fact that its author does not fully grasp the relevant usefulness: the regulatory texts of the numerous reforms of said Ministry seem to be linked by the common denominator whereby their respective lawmakers establish/eliminate/restore bodies; transfer and (re)define roles and responsibilities for each of them; zealously establishing, then, the ‘who’ and ‘what’ of the administrative action on cultural heritage, without, however, necessarily assessing the ‘how’. Often, in fact, during the application stage, how to perform certain tasks is unclear, given that the system assigned ex lege to a certain function is actually unable to attain it (because its structure is unfit; or because the competences between administrative bodies are duplicated, and the extent of the action of one and the start of another’s are not specified; or because technical-scientific skills are required that, due to the composition of its staff, are not met; or because the timing required by law to perform a certain function is incompatible with the number of bureaucratic procedures that such type of structure requires; or because the ‘declared’ reform is not promptly followed by an organisational regulation; etc.).
What good is it, then, to describe the structure of the Ministry – by comparing the statutory provisions that have been passed over time and trying to figure out what, on paper, intends to survive to what is new – if this is not sufficient to remove the uncertainty that, in their practical application, they generate with respect to the certain fields of action of the Public Administration? A complete organizational chart of MiBACT is easily found on its website.
What are lacking are concrete and clear answers on how it works. And without them, any reform, even when driven by the lawmaker’s best intentions, will always be just a remix and not a real, efficient reorganisation!2 This is because the Public Administration must indeed reach set objectives, but the lawmaker must previously (during the early stages) ensure that the procedure and structure with which it is provided are able to do so. What else, otherwise, is meant by effectiveness to be pursued under Article 97 of the Constitution and Article 1/1 of Law No. 241/1990?
Otherwise, failing the above assessment by the lawmaker, the consequence is quite obvious: given that the Public Administration must provide answers (by adopting an administrative measure), with respect to each and all steps of a procedure, it is for the Public Administration only to take the required decisions upon each failure by the lawmaker to provide the necessary clarifications on how to implement any such steps. This is why, contrary to any common-sense logic or efficiency, it may essentially happen that in the single branching structures under the entire bureaucratic apparatus, different practices are created to arrive at issuing an identical (as indeed prescribed, uniformly by law) administrative measure. And that is why, in practice, we cannot assume that the same question, addressed to territorially different administration offices, albeit equivalent, will get the same answer!
Given the above, on the other hand, could the Public Administration act otherwise? And the single private subject, what else should he/she do except hope for the Administration’s common sense?
Another common element to the lawmaker’s various interventions is the purpose that moves it, namely to streamline the organisational structure, in order to make its work more efficient, especially in terms of containing public expenditure. Translated in concrete terms, this means creating a bureaucratic structure that costs less to the State, in relation to the durability of its action over time, and without causing – at the same time – that «new or increased charges for public finance» (ex Article 1 of the Stability Law No. 208/2016, as rightly cited in the last
Ministerial Decree No. 44/2016) arise from the implementation of its reorganisation (today, and in 2014, 2013, 2009, etc.: specific term): otherwise, indeed, fulfilling the first condition without the second (or vice versa), would deny its very reason for existing; and without wanting to disturb Aristotelian Metaphysics, one wonders how such reforms could otherwise be in line with spending review principles so much invoked to the point of their adoption.
Now, although not being economists or lawyers, comparing numbers and dates from the list of measures (not even exhaustive) referred to (in footnote 5), the question spontaneously arises: is it humanly possible to salvage financial resources by implementing, for the umpteenth time, a ministerial restructuring, when the former one is still in progress? To attain, in this way, a genuine simplification and promptness of administrative action? To make it economical and effective? If the same actions in the past have had no beneficial consequences, we cannot only consider the fact that this does not depend on the inability of its predecessors, but rather from the regulatory and structural saturation that (by now) any reform of MiBACT will magnify?
Perhaps we need to change the starting point and, perhaps, we should take a step back.

Aside from the fundamental criteria mentioned in Law No. 241/1990, which drives the administrative action and on which, therefore, any relevant legislative provision must be shaped, there is one, probably highly regarded by anyone who loves the law, while not explicitly codified in any constitutional rule, that permeates the entire legal system and supervises its consistency: it is the principle of reasonableness3. On the basis of such principle, the Constitutional Court reminds us that the strength of the law does not derive only from the authority of the person who promulgates it, but from the ‘adequacy’ of what it provides.

«Verifying the reasonableness of a law [in fact] requires investigating its factual assumptions, evaluating the congruence between means and ends, detecting the same ends; to such purpose, the preparatory works of the law, the ministerial explanatory circulars, and the historical precedents of the relevant legal scheme are often looked to» Dizionario Giuridico Simone available at www.simone.it , under the heading «Reasonableness of laws [principle of]»4.

And what places the reasonableness at the apex of the system is its eminently practical character, which sets it apart from the abstract rationality around which, on the contrary, the analogic and systematic guiding principle orbits, and which requires a factual assessment in terms of results and consequences produced by the law5.
Therefore, if a practical control over the provision will ultimately sanction its lawfulness, why does the lawmaker not take such a similar practical approach ex ante when drafting any legislative proposal?
Why isn’t a preliminary, comprehensive and general survey carried out, for example, on all national territory concerning good practices (as referred to above) already implemented in regional and central administrations, in order to identify which of them actually ‘work’, by evaluating on the basis of reliable data? Failing their acquisition, how can the lawmaker, from the top of the pyramid, decide what is best to lay at the foundation of those implementation rules that the relevant doctrine and operators, both required to comply with them, currently report as being full of gaps or absent?

The public administration is essentially a ‘local’ administration (Bin-Pitruzzella 2003) in that it assumes that the bureaucratic structure that is immediately closest to its citizens is the one that best and more promptly fits their needs. This is the axiom enshrined in the Constitutional Reform under Title V pursuant to Law No. 3/2001 and from the principle of subsidiarity and decentralisation, through which the competences of administrative functions among the various local and state agencies – having inspired many legislative interventions (even) on the matter of cultural heritage – are shared. Therefore, if, to close the loop and achieve the system’s efficiency, I must influence and intervene at a local level, it will mean that any change taken from above should be evaluated, in the first place, fully knowing the concrete modus operandi adopted locally and, based on such, to then rationalise “in reverse” up to the central system, to understand what changes are needed. Conversely, reverse reasoning, from the central to the local, will likely continue to cause new reshufflings of structures, but without achieving any actual streamlining of the steps and letting practical answers to problems coming from implementing regulations, if and when enacted, and from individual local Public Administrations, if and how best they will consider to proceed.
So would have been so irrelevant to consider, for the purposes of enacting Law No. 125/2015, that in 2015 alone the Veneto Region’s Officefor Bibliographical Heritage [Ufficio Sovrintendenza Beni Librari Regione Veneto] had actually succeeded in concluding (and timely) 3,689 6 final exportations? Wouldn’t it have been more useful to request this information before, and not after, the promulgation of such law and to understand why the corresponding offices of other Regions recorded vastly inferior numbers? Failing such general and preventive framework, how could it be determined whether the regain by the State, as early as 1972, of the competence for the protection of bibliographical heritage was actually the most suitable choice, as compared, for instance, to tampering with and redefining (instead!) policies, guidelines and procedural protocols that have not been systematically addressed for almost half a century?7

3. Uniformity of evaluations (procedural plan)

Along with bibliographical heritage, in fact, the entire system to preserve cultural heritage under the ‘Urbani’ Code generally stands on the notion of cultural interest: simple (pursuant to Article 10/1), as for property owned by the State or any other public entity; particularly/exceptionally important (pursuant to Article 10/3) for privately-owned property. The Code provides that where the competent public offices assess/verify the presence of such interest in the property, the relevant provisions of the Code shall apply and in order to prevent any differences in treatment within the national territory (i.e. «to remove at the mere arbitrariness of the authorities»8 a decision involving, as it is well known, extreme restraints to the full and absolute exercise over private property, when it concerns a res privata), the Ministry is responsible for dictating the “general guidelines“, with which said offices must comply in order to ensure «uniformity of assessment» (pursuant to Article 12/2). Also Article 68/4 (a source of innumerable legal disputes and attacks on export offices) when regulating the procedure for granting or refusing to issue the «certificate of free circulation», envisages that «export offices shall comply with the general guidelines established by the Ministry, after consulting the competent advisory body». The same reference is included in Articles 4/1; 29/5; 71/4; 72/4 of the Code.
Therefore, within the lawmaker’s intent the desire for a uniform administrative action constitutes a guarantee for efficiency, equity and transparency; consequently, such uniformity is placed at the basis of the most significant measures related to the circulation and preservation of the cultural good. Yet, in the whole deluge of reforms adopted since its inception, neither MiBAC nor MiBACT have ever set the parameters required by the above mentioned provision. The only positive fact to which case law 9, doctrine and various operators refer is an out-dated ministerial circular of 13 May 1974 issued by the Ministry of Public Education.
Compared with Duchamp’s ‘Fontaine’, with Beuys’ ‘Felt Suit’, with Klein’s immaterial work, with the serial nature of the work produced by Warhol’s Factory and, remaining in Italy, with Manzoni’s ‘Merda d’Artista’, with Merz’s neon, with Fontana’s ‘Concetti Spaziali’ (etcetera, etcetera, etcetera!), we will acknowledge, however, that reference to their «unique superior artistic quality”, “rarity”, “singular technical quality» mentioned in the 1974 circular is quite generic and vague10; id est., useless for the officer called to make a decision, as well as misleading for the purposes of the «uniformity of evaluations» on the national territory.
Considering, therefore, that art has had time to become immaterial, Italy to join the European Union, Great Britain to exit it, shouldn’t it be a priority to update the 1974 circular?

4. Weak supervision of the Administrative Court and the court-appointed expert (at the trial level)

Secondly, we realise how the lack of uniformity of assessment contributed to creating a sort of ‘free zone’ at a trial level11 where, under the auspices of technical discretion (and thus protected from the inherent supervision of the administrative judge (Marzuoli 1985; Ferri, 1987; Cavallo 1993; Marini 2002), it is considered, in terms of protection, the sole cultural interest contemplated under Article 9 of the Constitution, without any form of heterogeneous comparison. Accordingly, the inevitable consequence is that the position of the individual owner of the work of art is reduced from full entitlement to a mere vested interest to the legitimacy of the administrative action (Catelani-Cattaneo 2002).
With specific consideration to the adoption of measures for the identification of cultural goods, the pro tempore MiBAC, with memorandum registered under No. 24516 of 28 September 2005 (recalled even in the more recent MiBACT circular No. 19 of 30 July 2015), expressly excluded that the offices, entrusted with the rendering of the technical assessment in respect of the existence of a cultural interest in the res being appraised, may linger in applying administrative discretion, involving the weighting among public interests or between public and private interests, in order to decide which of them should prevail in the actual case. This is because – as made out in the cited circular – «the choice of priority of the cultural interest has already been made once and for all in apicibus by Article 9, Paragraph 2, of the Constitution and by the relevant implementing provisions of law (from the Consolidated Act of 1999 to the 2004 Code, both fundamentally confirmatory, under such profiles, of the approach taken by the historical ‘Bottai’ Law No. 1089 of 1939)»12.
This approach meant that, as a consequence of the substantial uncensurability of the administrative actions on cultural constraints13, authentic masterpieces of Italian Art obtain the certificate of free circulation, possibly ending up in important foreign museums; works of dubious quality, of acknowledged repetitiveness, made modestly and amateurishly, are vice versa constrained, possibly with the indivisibility constraint (the most stringent existing in Italy), thus totally inconsistently with the unusual liberalism that inspired the Office in the assessment of real cornerstones of Italian Art (Lemme, 2015).

In hindsight, however, the legislative evolution over the last 40 years would require us to rethink the nature and scope of the MiBACT’s powers of protection. The distant 1974 circular was followed by, in chronological order, Law No. 241/1990 as subsequently reinstated and amended, which depicts the administrative procedure as the privileged moment to assess, weight and evaluate all facts and points of law as well as the various (public and private) interests involved in the administrative action; the Consolidated Act No. 490/99 and the Urbani Code of 2004. In particular, Articles 14, 19, 22, 28, 33, 46, 68, 70 and 71 of Legislative Decree No. 42/2004 follow the general discipline on administrative procedure, providing for the duty to notify to those concerned the commencement of the procedure aimed at assessing the existence of the cultural character of a property, as well as any grounds for refusing the motion (to issue the certificate of free circulation), for the obvious convenience, also in terms of budgeting, to anticipate in the procedural phase the comparison, usually commonplace at the time of the trial, between the Administration’s evaluations and the considerations of the concerned persons as for the property’s characteristics 14.

Unlike the existing regime under the ‘Bottai’ Law, today the private owner of the cultural work of art has the opportunity to speak as equals with the Public Administration, by submitting briefs and/or documents within the proceedings.
How can we, then, in this renewed legislative framework, postulate on the absolute irrelevance, a priori, of any interest other than the primary one? Would it not, on the contrary, be more correct (and consistently with applicable law) to acknowledge that, in the matter in question, to the traditional technical appraisal criteria were added, as a result of the known participatory principles provided by Law No. 241/90, also the unavoidable – and no less meaningful – moments of administrative discretion, aimed at balancing public and private interests involved in the proceedings for a declaration, provided by the lex specialis15?

From such changed perspective, the circulation of a cultural good, as well as the declared submission of such good to the cultural goods statutory scheme, are revealed to be the result of a complex process in which the technical discretion (applied on the good in order to detect the relevant artistic, historical, archaeological, ethnographic, bibliographic, etc. interest) is inextricably linked to the administrative discretion (concurrent with the weighing of
interests), since it involves, necessarily, a decision on the work of art’s worthiness for protection, and therefore a substantial «cultural policy choice» (Ainis 1991).
If it is true, indeed, that the second paragraph of Article 9 of the Constitution (“The Republic protects the landscape and the historical and artistic heritage of the Nation”) should not be interpreted separately from the first (for which, the purpose of protection and a fundamental task of the Republic is «the development of culture»), but naturally and necessarily in relation to it, it is equally true that the Administration for cultural heritage, when exercising its power to constraint, should take into account not only the cultural interest identified in the good, but also the interest of the private owner of such good and those remaining public interests, in potential contrast with the primary interest held by MiBACT (all adequately represented in the proceedings). From this perspective, the principle of proportionality, enlightened and enriched by the specialized disciplines applicable to the individual case, would represent the fundamental limit to the discretion to which the Public Administration is entitled to when decreeing the cultural merit of the res, thereby allowing to adapt the administrative measure to the peculiarities of the case, with the least possible sacrifice of any other conflicting interests, whether public or private16.
After all, to consider the technical rule able to provide unequivocal results (and therefore fully binding an activity) does not constitute an assumption that is acceptable in principle, given that any decision on the cultural nature of the good still lacks that dose of certainty that should characterise technical and scientific disciplines, by implying, in fact, an unavoidable rate of subjectivity (see Giaccardi, 1996)17 . Indeed, technical and scientific investigations relating to cultural heritage, by reason of the continuous evolution of the relevant disciplines and in the light of the physiological relativity that characterises them, can provide solutions that are not ‘certain’, but that are, at the most, ‘reliable’. Consequently, to protect the private owner affected by the naturaliter uncertain cultural circumstance, they should not be considered exempted from the inherent ‘weak’ control of the administrative court (Rota 2002).
With this, we do not want to argue that the court, by bypassing the basic principle of segregation of duties, may duplicate the value judgment made by the Administration (with substitute powers being inadmissible in the light of the exclusive jurisdiction of legitimacy).
More simply, it may confirm the actual existence of the cultural legacy, being the requirement for the contested measure, and together with it, the diligence employed, by using the techniques applicable to the investigation activity. It may, in other words, ensure compliance with the technical rule used, by going as far as to the

annulment of its evaluative outcome, if it appears that the result reached by the Administration, regardless of its physiological questionability, departs from the limits of natural flexibility underlying the indeterminate legal concept, which the Administration is required to apply, and is unreliable – in whole or in part – owing to the misapplication of the objective appraisal and evaluation criteria, or because of the application of erroneous criteria […]18.

On the other hand, the adhesion to the Administrative Court’s weak forms of supervision is supported a fortiori by the admittance, in the administrative trial, of the technical appraisal as part of the investigative instruments aimed at acquiring elements that are useful to forming the decision (Article 67 of the Administrative Procedure Code).
It would be desirable, therefore, that the administrative courts, instead of following the easier path of recalling (incorrectly) the technical discretion (that cannot be challenged other than within the narrow spaces of some symptomatic figure of ‘abuse of power’), should resort more frequently to the appointment of a court-designated expert, so exercising a direct control (based on internal and technical parameters, and not only external ones) of the debatable fact, at the foundation of the challenged restricting resolutions. Furthermore, given the subjectivity inherent also in the opinion of the most leading expert, it would probably be good practice to consult more than one and, based on what (once again!) takes place in practice, try to single out criteria that the expert must apply in the implementation of the appraisal, in order to facilitate, within the trial, the discussion relating to the merits of the different opinions expressed 19.

‘Art’, ‘Historic and Artistic Heritage’, ‘Cultural Heritage’ are elastic concepts, as well as all others that are the subject matter of provisions of law. This is physiological in order for such concepts to not become immediately obsolete. More than others, they likely have a large percentage of semantic flexibility with respect to their firm core meaning: defining them as a one off term would be impossible and even more counter productive for legal certainty. But, what we require from the lawmaker and the Administration concerned is not to provide definitions, but to give concrete answers, practical criteria, guidelines on conduct; and this implies first of all «making a choice». Not with respect to those who must carry out a specific competence and not on how to call the body, but on what we decide to prioritise today. Do we wish our beautiful artistic treasures to basically remain within our national boundaries, although this may mean storing them in depositaries or vaults 20? Or do we want to become more participative in the art market – a market necessarily international – thereby ‘reappraising’ certain works that we possess, although accepting, for some of them, «their exit from national territory with the consequent inability to control their movements and relocations»21? Personal opinion aside, we may also act cautiously in the face of a global market where exorbitant billing indexes are growing (strangely enough!) in inverse proportion to economic crisis indicators. But in that case, the more we tighten up the mesh of our national borders, the more we need to enhance what is kept inside, attempting to “revaluate” it otherwise. If we hold back and do not enhance, the Italian art market will cease to exist !22
Once the choice is made, and the guidelines are set, then yes, the lawmaker may consider a structural reform, but (again!) on the basis of concrete information acquired before intervening.
If, for example, Export Office officials are asked how to make decisions/ what in fact could be useful to them/ what is useless, by comparing proposals from various local offices, maybe we would understand how to enable them to work well (moreover by removing them from the resentment of private parties!); and the citizens (and the judicial authorities) to improve control.
We might, still for instance, ask ourselves:

Wouldn’t it be useful to grant the Export Office officials access to the artprice website (considering that: (i) Article 68/3 requires them to «ensure the fairness of the market value» of the good as indicated in the report; (ii) that the aforementioned website contains real time evaluations for individual artists in the international market; (iii) for this reason, in practice it is an essential instrument for anyone working in the art world; (iv) the annual membership cost is small)?

Wouldn’t it be useful to equip them with black lights lamps (Wood’s lamp)?

Wouldn’t it be useful to require that at least one out of the three experts sitting in the Export Office’s Commission, entrusted with the assessment of the property for the purpose of issuing the certificate of free circulation, actually holds the necessary expertise in relation to the specific type of art being the subject matter of such assessment? And where such a requirement is not met, mandatorily resort to the leading outside opinion of an expert on the subject?

Wouldn’t it be useful to require that the abovementioned Commission’s individual experts – who will be required to appraise during their work hours – receive suitable documentation on the property (obviously well!) in advance before the date scheduled for their personal inspection?

Instead of pointing a finger at the Export Offices (as we have seen to be frequently useless and very expensive in practice!), wouldn’t it be more constructive, and fair, to bridge the regulatory vacuum by starting with requiring what has been said above? How can we not notice that the frustration of private interest (with verifying the quality of the Offices’ assessment) goes hand in hand with the development of the administrative practices that are necessary (to supplement that regulatory shortfall), although not necessarily ‘good’?! Articles 24 and 97 of the Constitution must be jointly fulfilled, and be jointly implemented as the link connecting the management system with the cultural heritage. This, however, cannot be done by the Export Office or any other individual ‘parts’ comprising such system. That is why leveraging their erroneous judgments in the individual concrete case cannot be the answer to the problem (but, rather, a return to its starting point!).

The author, furthermore, can only jump to the defence for qualifying some civil servants, considering the diligence that they show when carrying out their duties despite the many changes, resources and sometimes-meagre answers.
Along with them, who writes shares the determination and confidence that things might get better.

Note:

[1] The ‘Ministero per i beni culturali e per l’ambiente’, subsequently called ‘Ministero per i beni culturali e ambientali’ (Ministry for Cultural and Environmental Heritage), was established by Law No. 5 of 29 January 1975, which signed into law and amended Legislative Decree No. 657 of 14 December 1974. It is worth noting that the Cultural Heritage Law was conceived far before the establishment of the abovementioned Ministry, considering that either the ‘Codice Urbani’, being the Code of cultural heritage and landscape currently in force and adopted with the Legislative Decree No. 42/2004, as well as the ‘Melandri’ Consolidated Law No. 490/90 previously in force, transpose the main lines of the ‘Bottai’ Law No. 1089/39, which in turn was guided by the ‘Rosadi’ Law No. 364/1909 and by the ‘Pacca Edict’ of 1820.

[2] Ad probationem, the facts only (the legal references referred to herein, far from being the only ones adopted, are considered the most significant for the purposes hereof):
Law Decree No. 657/1974, signed into Law No. 5/1975, establishes the Ministry for Cultural and Environmental Heritage.
Legislative Decree No. 368/1998 reforms it, by establishing the Ministry of Cultural Heritage and Activities.
The most relevant, among others, are Legislative Decree No. 300/1999 and Presidential Decree No. 307/2001, which regulate the organisation of the offices directly collaborating with the Ministry of Cultural Heritage and Activities and the ancillary functions bodies.
Legislative Decree No. 3/2004 (organisation regulation: Presidential Decree No. 173/2004) reorganises the Ministry of Cultural Heritage and Activities, by eliminating the role of General Secretary (which was
established within the previous reform) and replacing it with the Departments model).
Legislative Decree No. 42/2004 issues the Code of the Cultural Heritage and Landscape currently in force.
Law Decree No. 181 of 18 May 2006, signed into the Law No. 233/2006, implements a new reorganisation of the Ministry, withdrawing all Ministry’s functions, structures and resources in the field of sport, in exchange for (!) the structures and resources in the field of tourism: “what is staggering (as highlighted by G. Sciullo) is the failure by the lawmaker to provide for an exact match between the role carried out by the Ministry in the field of tourism and the system to which the Ministry belongs; indeed, the functions exercised in the field of tourism do not fall within those allocated to the Ministry, while it is actually for the Presidency of the Council of Ministers to hold the relevant responsibility pursuant to Article 95 of the Constitution”. Law Decree No. 262/2006, signed into the Law No. 286/2006, reinstates the General Secretary and abolishes Departments (!), for the purpose of decreasing public spending (!!). To be noted: however, the provisions of the organizational regulation Presidential Decree No. 173/2004 remain in force, to the extent applicable and consistently with the Ministry’s structure, until and through when the new organisation regulation was issued with Presidential Decree No. 233/2007, one year after.
Presidential Decree No. 91/2009 reorganises MiBAC.
By Law No. 71/2013 MiBAC becomes MiBACT: the bureau on Tourism policies is transferred from the Presidency of the Council of Ministers to the Ministry of Cultural Heritage and Tourism.
Decree of the Presidency of the Council of Ministers No.171/2014 reorganises the MiBACT.
Law No. 125/2015 transfers the functions for the protection of bibliographical heritage from the Regions (as formerly provided with Presidential Decree No. 3/1972) to the State.
Ministerial Decree No. 44 of 23 January 2016 reorganises MIBACT.

[3] Bin-Pitruzzella, 2003 p. 468: «The consistency rule, implicit in the principle of equality, may be expressed as follows: when issuing rules, the lawmaker remains free to choose the purposes, program, principle to be developed (to the extent that they do not conflict with any “substantial” constitutional provisions, such as those sanctioning rights, freedoms etc.); but once the ‘principle’ has been chosen, it must be developed accordingly […]».

[5] See Cartabia 2013 with reference to the ruling of the Constitutional Court 130/1988 «The assessment of reasonableness, while it does not require the application of absolute and pre-definite evaluation criteria, proceeds through proportionality weighting of the measures taken by the lawmaker, in its absolute discretion with regard to the objective purposes to be achieved, taking into account any existing circumstances and limitations».

[7] More precisely, with regard to bibliographical heritage, reference should be made to the Implementation Regulation of the ‘Rosadi’ Law No. 364/1909, approved with Royal Decree No. 363/1913.

[8] Lemme, 2006, with specific reference to the Export Offices as to the free circulation certificate, but applicable to all «competent Minister’s bodies» entrusted with the cultural interest assessment for the purposes of Article 12/2 of the Urbani Code.

[10] The absolute indefiniteness of the notion of rarity can be fully understood in the interpretation of the administrative courts case law, maintaining that the rarity of a work of art cannot be assessed only on the basis of numerical criteria or on the grounds of the uniqueness of the work (Regional Administrative Court (TAR) Lazio, Rome, II quater, No. 1786 of 2015; and No. 5318 of 2011, the assessment as to the rarity of a work of art shall be based on the concept of «marginal usefulness», i.e. such additional value of a work of art – as compared to any values already possessed – and adjustable from time to time to the needs of the relevant cultural education and policies of which such value constitutes the relevant expression and which may justify the inclusion of such work of art into the national cultural heritage even to yet another picture of a Master already included in public collections, once the relevant advisory authority will have assessed its particular uniqueness).

[11] It is also worth noting that the sole instrument available to a private party to obtain a review of the judgment is to appeal against it before a higher authority (ricorso gerarchico). However, it can prove being a difficult path, given the usual procedure of the head authorities (to note: belonging to the same governmental entity that issued the concerned ruling), to fail to answer to such party claim within the ninety-day period provided by Article 6 of Presidential Decree No. 1199/1971, “silently rejecting” the claim (decision which may be also challenged before the Regional Administrative Court (TAR) or by submitting an extraordinary appeal to the President of the Republic).

[12] In 2004, the Lawmaker does not actually diverge from the original framework of the ‘Bottai’ Law, thereby delaying the harmonisation with EU law and rendering the declaration of cultural interest subject to a high degree of discretion. Thus, the operators of the art market complain about an assessment being substantially conditioned by the arbitrariness of the competent office (see Footnote 12). This would be the reason why – according to certain authoritative literature – foreign collectors adversely look at our shows and exhibitions, while Italian collectors are worried about the disgrace of the «embargo on exports» (see Morabito 2012): upon a good has been declared as a cultural good, the privately-owned property enters into the black hole of administrative proceedings and may, in accordance with applicable laws, be subtracted from the freedom of contract for an indefinite period of time.

[15] Reference is to Article 42 of the Italian Constitution, Article 17 of the Nice Charter, Article 1 of CEDU Additional Protocol No. 1 and to the heavy limitations that the status of cultural heritage entails on the property right; thus identifying a ‘conformed’ ownership title, adjusted to the existence of the public interested protected in compliance with Article 9 of the Italian Constitution. See Salva 2002, p. 603 ff).

[16] See Parisio 2008, for whom «the preservation of cultural heritage always assumes the simultaneous
settlement between the public interest in the protection with the private interest in the full enjoyment of the good» (page 177); on such assumption, the principle of proportionality is «the means which most allows the evaluation of the exercise by the Administration of its discretionary power, with the perspective of considering the interests involved» (page 187).

[17] See G. Ciaccardi, 1996. Needless to say (in terms of procedure), MiBACT should be equipped with uniform evaluation parameters, certain and determined to the highest possible extent, as well as stringent and objective assessment techniques aimed at ascertaining the existence of a cultural interest, to minimise the disputability of evaluations.

[18] In such terms Council of State, Section VI, 11 March 2015, No. 1257; accordingly, Council of State, Section VI, 23 April 2002, No. 2199, with note by G. Scarselli and F. Fracchia; Council of State, Section IV, 6 October 2001, No. 5827, in Foro it., 2002, III, 414, with note by E. Giardino; Council of State, Section VI, 14 March 2000, No. 1348, in Giust. civ., 2000, I, 2169.

[19] B. Zagato, 2015: «[by identifying such criteria], in case of dispute it will always be the judge or the arbitrator who will decide on the actual case, but in this way they will not have to grope around in the dark in order to reach a decision, nor will they have to be experts on art, as they will be able make an assessment on the basis of constant elements; they will be able to compare them with consideration of other expertise provided on the same piece of art, by requiring, if necessary, the rendering of an appraisal aimed at clarifying the same points. Finally, on the basis of such criteria, (now yes!) they will be able to establish what should be deemed most relevant, and base their decision on it».

[20] We must remember that the decision to keep a cultural property within the country’s boundaries could be based not on the need to preserve the property itself, while the possibility to ensure the availability of such property on the territory in the event the State may wish to acquire such property in the future. Which could also never happen; in addition, by following such reasoning, nothing could ever be allowed to be taken out!

[21] Judgment of TAR Lombardy, 29 January 2002 No. 345 on the contents of the prohibition to export.

[22] In addition, to encourage the appraisal as a sort of counterbalance to keeping a property on national territory would represent a “proportionate” measure towards any private interests that possibly came into play.

Il Giornale dell’Arte

YEAR XXXIII SEPTEMBER 2015 ALLEMANDI PUBBLISHING

THE LAW OF ART: FREEDOM OR ANARCHY?

1. Art from the prospective of the Italian legal system: the significance and boundaries of Article 33 of the Italian Constitution. 2. The growth of the art market and the absence of a framework law regulating art: problematic aspects and regulatory needs (the “ontological/internal” aspect and the “external” aspect of art law). 3. Conclusion.

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1. Art is one of the greatest democratic expressions of any legal system. And art means freedom.

The protection of art is considered one of our Constitution’s fundamental principles, and even more so a primary and supreme value of our legal system, as its “basic contentmay not be subverted or amended, neither through a constitutional amendment, nor by any other kinds of constitutional laws”1. Likewise, at a European level, it has been declared a fundamental right and has been included in Article 13 of the EU Charter of Fundamental Rights. This is because art is perhaps the most powerful tool with which minorities can express their dissent, regardless of the form of Government in place at any given time, thus rendering art a truly exceptional field2: it is and always will be a gateway to pluralism.

Provided that it must indeed be art, i.e. provided that it must be free.

“Art and science are freedom itself, in its highestforms, and to say that art and scienceare free is like saying that freedom is free“3: these are remarks from the Constituent Assembly, which, purposefully, devoted Article 33 of the Italian Constitution specifically to protect it, separate from the protection of any other expressions of thought. Its corollaries are Arts. 21 and 9 of the Constitution, toward which, according to certain scholars, it strikes a species to genus relationship, or, according to other scholars, existing as a separate space of its own. Indeed, there are manifestations of thought and expressions of culture that are not art, but the opposite is never true. Furthermore, any artistic expression is not subject to the limits of “morality“, which over time the courts have increasingly aligned with the concept of “obscenity” (to be gauged based on the common sense of decency of the average human being4) preferring it to the broader concept of “social morals“. Art can therefore be and “use the obscene like any other means of expression, and it is [omissis] its provocative nature, that can sometimes be the essential purpose of much art, at various times set in irreconcilable conflict with its social and ideological context“5: but the fact that it can be considered as art will render any further investigation on obscenity redundant. Article 529 of the Italian Criminal Code is proof of this.

The so-called privilege that guarantees that art has a more extensive “scope” in comparison to other expressions of thought does not mean that artists have the power to do as they wish, but rather that the maximum possible performance should be allowed for their freedom, in respect and relation to other constitutional rights and freedoms with which such a freedom will coincide on a practical level6, admitting, that a judge will be allowed to limit such other values and rights to their bare core (i.e. they will reduce them to their essential core), where it is necessary for the performance of artistic freedom. Ultimately, a judge will allow the artist to yield only before certain other more supreme and paramount constitutional values, which represent a logical prius7. Ergo: right to life8; to mental and physical integrity9; to equal social dignity and honour10; to security and public safety11; to the protection of minors12; to public order13.

2. The above premise serves to define the scope of the law, so that it does not pervade the art world, distorting its essence. It is the scope of the freedom pursuant to Art. 33, so dear to the Constituent Assembly, which was fully aware of the effects of an “art” of State. Such a freedom was obstructed by an excess of regulations through which the legislator caused it to degenerate into propaganda. But, even a freedom that is totally devoid of regulation, which guarantees implementation with a principle general rule, would amount to pure anarchy, thereby overwhelming it. And this is what presently occurs within our legal system, which is contributing to the increasing uncertainty characterizing the art market at a European and international level.

Currently, our legislation has not yet prescribed any specific regulations on the subject, and there is consequently a lack of instruments that could provide clarity and certainty to everyone, including to judges, when facing art matters. Thus, one can imagine the potential (to use a euphemism) abuses that may arise and, considering that the art market is one of the most prosperous globally14, despite a world left reeling by an economic crisis, one must question how this is possible.

Art needs a legal structure to surround it, pursuant to the principle contained in Article 33 of the Italian Constitution and Article 13 of EU Charter of Fundamental Rights, aimed at regulating both the moment of production – and therefore the initial artistic expression, connected to that creative action leading to the production of an asset (material or non-material) becoming a work of art (the “ontological” or “internal” aspect of art law) – and the period following such production, which instead relates to art’s traceability, proof and commerce, closely connected to the economic profile of art (the “external” aspect of art law). The absence of either of these aspects brings about the failure of protection, as they are inextricably connected on a practical level (even more so today, considering the ephemeral, conceptual and immaterial trend of some contemporary art, which, in order to give proof of its existence, and therefore to become eligible for protection, requires instruments that can ensure its production took place, as well as can verify its authenticity15).

The legal implications concerning the first of the two above-referenced aspects might be summarised through a comment by Pasolini, who in an interview for Corriere della Sera in 1973, was expressing an opinion shared by many, in denouncing the Italian legal system for its dichotomy, whereas either an artist would actually produce an authentic work of art, or alternatively he would be sent to prison (his countless summons to trial are evidence of this). In fact, each of us is guaranteed a fundamental and supreme right by the Constitution, but once we attempt to put it into practice, not only we do see ourselves denied any protection but are indicted for committing a crime consisting of the same conduct that we believed to be an expression of such right. It should be added that such uncertain protection granted to a work of art almost always occurs after a piece of art has been finalized, without considering the creative activity that brought about such a result. This is also a violation of the general principle of the law as, truly, an effective protection of artistic freedom (e.g. in a filmed work or performance), can rest solely through protecting the artistic actionin the making. Reference should therefore be made to certain guidelines in order to measure the intrinsic seriousness, professionalism and technical worthiness of the artist’s activity, ensuring that its protection is unbound from the final assessment of the work, in the event that it may not be a masterpiece16.

As for the second aspect, it should be noted that in the absence of a regulatory framework, it is habit that makes and perpetuates the ‘rules of the game’, with outcomes that are not easy to predict and not always suitable. The art market is predicated on the fact that the value of a certain piece of art is determined by its market listing, which is quantified first and foremost by the selling price at international auction houses. The price may fluctuate over time, depending on the supply and demand of that particular artist, which is why it is the market itself that effectively sets the price. The promotional activities conducted by the various galleries, museums, foundations and archives are relevant in this context, as they help to enhance or preserve an artist’s fame: one could say that these stakeholders sense, exploiting it, the “aesthetic appetite” of the general public. What is increasingly happening is that none of these operators would agree to sell, move, display or buy a work of art without a certificate of authenticity. Without any laws regulating it, it has become a condition sinequa non to guarantee the value of the work, to the extent that such a value depends more on the authenticity opinion than on its artistic features. Therefore, to ensure security, a mechanism was constructed that ended up denying its purpose and creating yet more uncertainty, because expertise is very capable of creating certainty, but only factual and temporary certainty, as it is often more binding on the expert issuing it than on the work, and often an expert’s opinion will be refuted by another expert’s opposing opinion.

The origin and cause of both observations lies in the fact that a law framework has not yet intervened. To date, in Italy:

There are no regulations that set out therequirements to authenticate any artwork. While initially Law 1062/1971 (the so-called “Pieraccini law”, incorporated in the Code of Cultural Heritage17) required that a seller should provide a certificate of authenticity to the buyer, now Article 64 of the Code of Cultural Heritage simply states an obligation to provide documentation only if available18, but “beyond the differencein terminology of the two disciplines, the law does not specify exactly which formal requirements such opinion should meet” 19. The legislative power should therefore ponder about the fact that, given the very substantial economic impact of authenticating within the art market, how can we ensure the protection of artwork and those who work in the field of art, without setting any criteria in drawing up a certificate of authenticity? The same goes for the reliability of the document and the person/entity issuing it?

Clearly, establishing ex ante certain formal authentication requirements for a phenomenon that uses any means and form to express itself is no easy task. This is probably where legislative power’s main challenge resides, combined perhaps with the fear of drafting a set of rules that may be too rigid or become immediately obsolete, and thereby incompatible with artistic freedom. Art operates in a borderline territory. However, instead of representing the Achilles’ heel of a possible regulation, such a feature in fact ensures its consistence with the existing legal system. Indeed, we are not asking the legislative power to define a set of rules that, where followed slavishly, would achieve a judgement of truth on a work of art. Instead we are asking for the legislative power to choose suitable criteria to define the reliability of a certain document or the person issuing it, pursuant to a probability assessment. We are asking for certain criteria that an expert should follow in offering its expertise, in order to make drafting and evaluation process transparent to everyone. In the event of a dispute it will still be a judge or designated arbitrator to decide on a case by case basis, but in this way they will not remain wondering in darkness, nor will they have to be art experts in order to reach a decision, as they will be able to make an assessment based on set elements. They will be able to compare such elements with the equivalent elements of other expertises stated by different experts on the same work of art, making use, where appropriate, of expert witnesses. Finally, based on such criteria, they will be able to establish what elements should be deemed most relevant, and base their decision on it.

In this regard, the reports of the Authentication in Art Congress should be noted. In 2014, such congress convened experts at The Hague from around the world, precisely “[…] for the purpose of establishing standard requirements in themarket for reports of this nature […]facilitate the market’s good faith […], enable courts and judicial tribunals to assess the admissibility of expert reports under the applicable rules of evidence and law […]“.Under Section 3, nine criteria for expert opinions to be based on are described, highlighting the technologies that can be applied to a work of art and specifying that “if the witness’s methodologyis based solely on observations, his or her methods of analysis may be deemed reliable only if the observations are based on relevant, extensive and specialized experience. Typically, experience-based observations without further explanation or preparation (such as recognition of the observation-only technique by others in the same field) are not generally acceptable”. With the result that the “conclusion based on the standard criteria–especially those which apply different acceptable,reliable methodologies but reach diametrically opposed opinions about the same painting – are inherently credible. With the same underlying structure, these differing opinions of observationalist vis-à-vis observationalist, scientist vis-à-vis scientist or observationalist vis-à-vis scientist can easily and effectively be compared so that stakeholders can best determine authenticity”.

The legislative powers could, for example, start with identifying and exhaustively analysing all the possible technical and scientific instruments made available by technological research for analysing a work of art with the aim of understanding which margin of accuracy is reliable: the higher the margin, the more the use of such an instrument should be preferred. Secondly, an expert who does not use the instrument with the higher margin of accuracy, or had used it and decides apart from its results, should explain the reasons for his or her decision, thereby ensuring the soundness of their assessment. While remaining an opinion, it should still be anchored to set criteria, and therefore more easily understandable, verifiable and comparable with other data. The legislative power could provide that, in the event an opinion was not based on technical findings, the number of publications on a particular artist could be relevant, thereby limiting situations where of someone could proclaim themselves a leading expert of an artist without having written enough on such artist, by virtue of simply acquiring the artist’s archive, publishing a book and starting to index their works.

II those who can issue it and what weight to attribute to their judgement, bearing in mind that there is no professional register for art experts, nor an institution called on to verify their expertise,

Art. 64 of the Code of Cultural Heritage, the only regulation to prescribe on the “authenticity” and “origin” of works of art, does not provide any indication as to who is entitled to issue such opinions, leaving it open to interpretation whether exclusively those persons identified by Arts. 20 and 23 of the Law of Copyright20 are allowed to do it, by including the right of authentication in the author’s moral rights (in this regard, Court of Milan, section I, July 1 2004), or if such opinion can be released by any of the persons described by Articles 2222, 2230 Civil Code and 21 of Constitution (in this regard, Court of Milan, Section P.I., 13 Dec. 2004). It seems logical to support the second hypothesis, otherwise one risks distorting the purpose of Art. 20 of the Law of Copyright, which supports the attribution of the right contained in Art. 23 of the Law of Copyright. In fact, not even the right recognised to a living author pursuant to Article 20 of the Law of Copyright seems to be exclusive, since, in a criminal court, their testimony on the actual attribution of authorship of the work will hold no more weight than any other witness, summoned pursuant to Article 9 of Law 1062/1971, which defers to a judge any decisions on whether to use artistic expertise or to rule on the testimony of the author21.

Even more so, supporting an attribution ope legis of the quality of an art expert to the heirs would not make sense, especially bearing in mind that they are entitled to the so-called resale right to, and other economic interest in, the works of the deceased.

Nonetheless, it is disconcerting to realise that no matter which theory one chooses to support, both allow for the possibility of entrusting anybody as an expert witness, including individuals who are not experts at all. It is often claimed that this is exactly what happens in reality, which perhaps explains the reason why pending a litigation, most often expert witnesses are not called upon and a settlement is made out of court, thereby reducing the usefulness of the expertise in the artistic field, as from a practical perspective it generates more confusion than clarity.

Declaring that the act of authenticating a work of art is a technical activity (expertise), and not a manifestation of copyright, implies classifying it as one of the expressions of thought under Art. 21 of the Constitution, qualifying it as a manifestation of “free speech“.

This consideration does not only allow, as previously suggested, that absolutely anyone can potentially provide expertises (subject to the right to claim or deny copyright of the work pursuant to Articles 20 and 23 of the Law of Copyright), but also that the courts cannot punish an individual who provided it, except for wilful misconduct or gross negligence. Furthermore, it is impossible to understand on what basis the judge can consider such an opinion as more reliable than any other, and give preference to it when making a decision, as such an opinion is not ex se an instrument of objective significance suitable for removing the element of uncertainty.

Due to the current state of our framework legislation, by following the legal provision one could not arrive at another solution: it is undeniable that the act of authentication falls under the scope of free speech, therefore being free and irrepressible. What is equally true, however, is the increasing tendency of art to turn “into an art market and now an artindustry“ in which an expert opinion has the same authority of law itself (sometimes without reasonable criteria). Therefore, if nowadays an art critic is allowed (and required!) “to briefly explain the reason why he/she does not consider a work of art to be authentic and by this assuring him/herself free from any coercion”, the lack is not attributable to the critic itself, but to the inertia or incapacity of the law to anchor an expert opinion to certain, fixed criteria.

From a procedural perspective, this begs the question of whether the legislative power has actually considered the possible value of a professional register of art experts, hoping that the absence of such a register is the result of choice, rather than inability to create one, due to the lack of the aforementioned parameters. What is certain is that establishment of a register, as envisaged by the Pieraccini Law in 1971, has never been implemented, and that currently in Italy art experts are not required to enrol in a professional register. Only the Chamber of Commerce has set up its own register of art experts. The entry requirements are holding atechnical degree in the field orhaving practiced as a professional art dealer for at least three years, and the Chamber will assess the validity of any documents submitted to it, or, in case those are deemed to be insufficient, will examine the applicant. In any case, such registration is not required to practice or in any way mandatory, but exists as a means of informing the general public. Once again, anyone could potentially declare themselves an official critic in relation to a particular artist.

III There are no economic criteria or classes to refer to in order to calculate the cost of expertise, nor are there any penalties for those who, by providing it or not, cause economic damages to the owner of the work (except for wilful miscount or gross negligence).

One should also question whether there would still be so many aspiring experts wanting to issue authentications if such authentications were cost free by law, or not as expensive as they currently are. And what if the expert were not paid per authentication, but received a monthly fee for their work?

IV The regulations on Artists’ Foundations or Archives are also almost non-existent. The patent of “officialdom” that often accompanies their catalogues, tends more to be a de facto self-proclamation, without legal value, since there are no law rules providing for an exclusive right to issue such patent. The creation of a catalogue including all the works of an artist is based on the discretionary judgement of the archive’s organisers. Given that “when the entities managing an artist archive claim to have the final word on the official corpusof the works of an artist..” this is in reality their discretionary opinion, “they usurp a right that the current law does not even recognise to the living artist, let alone to any individual who has replaced an artist by virtue of inheritance rights” 26 (the moral right of authorship).

Nonetheless, where the law is silent, the entities owning the archives hold de facto power to decide the fate of a work of art, with irrevocable rulings. What complicates matters further is that, in the absence of an exclusive right, there may be multiple ‘official’ archives for the same artist. For this reason, regulations on the requirements, establishment, operations and control of the archives, together with regulations on how authenticating opinions are issued, would primarily facilitate the archives themselves, or better those operating on the art market in a serious way, streamlining the ongoing legal disputes where there are accusations of abuse concerning the economic interest in assessing works of art27.

The lack of legislative power’s action is all the more incomprehensible when one thinks about the meticulous government intervention to regulate private property considered to be of “particularly significant artistic, historical, archaeological or ethno-anthropologicalinterest” or “exceptional interest” (Article 10/3 of the Code of Cultural Heritage), allowing very strong interferences on and limitations of the enjoyment of private property28. In regard to such legislation, it is natural that one should want to know what these “a general guidelines, established by the Ministry itself in order to ensure uniformity of evaluation” on private property, to establish when it is of National cultural interest (Art. 12 Code of Cultural Heritage).

One must wonder what is the basis upon which the Government can decide when a work of art is so important that it should be of cultural interest, especially because it cannot rely on any instruments to decide, a priori, when a work is art and what its actual value is (based on a judgement of certainty or at least probability).

If these criteria exist, and are based on values of clarity, transparency, uniformity and verifiability, then why not assess whether those same values could be applied to a “simple” work of art?

Currently, there are no law provisions protecting the art buyer, who having purchased a work of art which, by way of example, has been crafted more than 50 years ago by a deceased artist, sees its value drop, because the value of such work of art cannot be guaranteed. But, if on the other hand the buyer is so lucky to not incur any dispute about the value and authenticity of the purchased art work, in the event in which such is even declared to be a cultural good, he/she will be subject to regulations which authorise the Government to supervise any operation he/she may want to perform on that art good. Despite this being justified by the need to protect our immense cultural heritage (recognized at a European level, Art. 167 TFEU, too) one cannot help but note that “works by authors that could be sold at extremely significant sums face obstacles inleaving Italy, and therefore their prices on the Italian market are lower than their foreign counterparts“29 at the expense of the owner. This is why greater clarity on the establishing criteria used by the Italian Art Supervisory Agency (Soprintendenza alle Belle Arti) is required and due.

3. These are the queries to which the legislative power has not yet been able to provide a response, perhaps because the nature of the topic in need of regulation is so difficult to classify. But this cannot constitute a limit to implementing legal protection, and if anything should just represent a starting point.

Art encourages reflection, creation, transgression, and that is already sufficient per se. Perhaps stimulation, an idea, an ideal is all that art is, and its function should be to pursue such stimulation, idea, ideal. On the other hand, believing that one has finally succeeded in conceptualising art, means not loving it and means failing to understand it. It would be like claiming to be able to explain what faith is and what it means to have faith. But in this way, how can one obtain “common data” from the behaviour of a group of people belonging to a certain faith, and use this data to try to regulate the external aspect of such behaviour, the same process could be applied to art. And this is what must be asked of the law.

In a debate on the freedom of art that was held in Bolzano in 2006 following the indictment under Article 292 of the Penal Code of the work Confine immaginato by Goldiechiari, some postulated that a museum should be a free zone, where there is no state law that governs, thereby giving unconditional space to the freedom of art. As was rightly pointed out on such circumstance, however, “the freedom of art derives paradoxically from the limitations that are imposed to it.” Art will always represent an attempt to go beyond and to surpass laws and policies […], creativity can express itself at its best only by trying to oppose any attempts to block such pursuit.” As we can see, artistic creation is nothing other than a response to limitations and stifling borders. Therefore, as an answer to the provocative question asked by a politician whether one might consider a photograph of the gate of Auschwitz to be art if the adjective “beautiful” were placed above it30, one refers to the paintings by Zoran Music who, having returned from the concentration camp of Dachau, depicted the bodies of the concentration camp, as he himself wrote, for he was going to seize the “tragic beauty, […]the tragic elegance of those slender bodies” stacked up on top of one another like a herd of animals devoured by death. Or the words of the Nobel prize-winner Imre Kertesz, according to whom “there is no absurdity that cannot be experienced naturally and by my own journey. I know, up until now, that happiness awaits me like an inevitable trap. Because even there, beneath those chimneys, in the interval between the torments there was something resembling happiness. Everyone always asks me about the evil, the “horrors”: but for me, perhaps, perhapsthis is the most memorable experience. Yes, it is about this, about the happiness of the concentration camps that I should tell them about, the next time that they ask me“. And even Etty Hillesum, who died there at Auschwitz at a very young age, requires that we reply to this question with a smile, since that image, like all her writings, so terribly sweet and atrocious, are nothing other than a message of love without limits, love for the human being per se, leading us to be able to say “I love you, even if I did not know you, or will never know you, because you are like me, because you are a human being”.

For this reason, let’ s the artist continues to persevere with their art, and the jurisprudence scholar finally begins to find solutions to the problems that arise from it, only not forgetting that when we deal with art, every preconception and every prejudice should be removed from our mind, along with any instinct to conceptualise and rationalize by schemes; before providing an answer.

Henri Matisse said “the work of art is a dangerous territory, where it is easy to lose oneself, but if one is equippedwith energy and curiosity, it is possible to ‘reconcile the irreconcilable’: this is the role of the artist” 31, and while his comments were about art in particular, perhaps they are just as relevant for jurisprudence scholars.

[2] A case in point is the artistic performance of the Cuban artist Tania Bruguera for the Tenth Biennial Art Festival in Havana in 2009, where she let members of the audience take the microphone for a minute to say anything they wished: anything at all, with no filters, no propaganda and no limitations. What is not admitted as free expression of thought becomes lawful through artistic expression. All the more significant was the fleeting intervention of one girl who took the microphone and saidsimply: “that one day freedom of expression in Cuba should not just be a performance” (https://www.youtube.com/watch?v=B3KOV26APlM).

[4] Constitutional Court Judgement 9/1965, 120/1968, 49/171, Criminal Court of Cassation 78171/1985 and preparatory work for the Constitution, Sitting on 25 Jan. 1947, with regard to art, the concept of “constitutional” morality is identified with “obscenity”, under art. 529 of the Italian Criminal Code, relating it closely to sexual restraint and making a distinction from “public decency” pursuant to art. 726 of the Italian Criminal Code. The prevailing constitutional interpretation, therefore, makes reference to the narrower “criminal” concept of morality, considering the “civil” concept referred to by Article 1343 of the Italian Civil Code as too broad, as a limit to the legality of an act of negotiation and made to coincide with “moral and ethical conscience”.

[6] Constitutional Court Judgement 12 Mar. 1976, no. 57, with reference to Arts. 2, 3, 9, 33, 42 of the Italian Constitution, “the freedoms invoked, as with all rights of freedom,are limited, since the concept of limits is inherent in the concept of law, as this Court has affirmed from Sentence no. 1 of 1956, which means the possibility of determining the scope of action of the various subjects within such conditions that the rights of others are guaranteed as being equally deserving of constitutional protection“.

[7] Bearing in mind that categorical balancing is in any case “temporary, changeable and likely to be on the verge of crisis inlimit cases” indeed “even when the Court refers to supreme principles, it should not be forgotten that their contents can never be predetermined in abstract, as they are outlined in each particular case” (R. Bin in “Diritti e argomenti, il bilanciamento degli interessi nella giurisrudenza costituzionale”, Giuffrè, Milano 1992).

[8] For example, it would be unacceptable for a film director to make a film showing by causing the actual death of an individual, in order to raise awareness about active euthanasia, even with the individual’s consent pursuant to Art. 27/4 of the Italian Constitution and 579 of Italian the Criminal Code. It would be different, however if an artist were to take their own life, but not in name of the protection under Art. 33 of the Italian Constitution, but rather under Art. 2 of the Italian Constitution, under which there is no obligation for life.

[9] Physical and mental integrity prevails over the freedom of art, and the artistic judgement of the work produced has no relevance pursuant to Arts. 32, 27/3 and 13/4 of the Italian Constitution, but only to the extent of permanent disablement of the individual or others under Art. 5 of the Italian Civil Code. In this regard, various forms of body art are admitted, such as those practised by G. Pane, M. Abramovic, V. Acconci and G. Brus. The right to refuse treatment within the protection of health is then relevant, and perhaps may admit the possibility to be expressed through an artistic performance, for example a film about passive euthanasia, where the director or another individual allows themselves to die during the scene.

[10] Both are inviolable rights under article 2 of the italian constitution, and the foundation of Article 3 of the Italian Constitution. Human dignity, as envisaged by Arts. 36/1 and 41/2 of the Italian Constitution, pervades the entire Constitution and is jeopardised the extent of being a mere object, replaceable (A. Pace in ” Problematica delle libertá costituzionali “, Cedam, 2003). This marks the borderline for establishing the lawfulness of possible interventions on the human body by third person, for example. Could the freedom of art go so far as to use bodies for artistic purposes? If we were to follow Pace’s position, then no, but the facts seems to provide a possible solution. The exhibition Real Bodies has been running around the world since 1997 (in Italy in 2014/15) to much box-office success and sensational fame for its creator, who thanks to “plastination” managed to find a way of preserving bodies in perpetuity and of making every body part malleable and odourless. The bodies on display are not rigidly extended on an anatomical table, but shaped like sculptures in certain positions, such as seated playing chess or scoring a goal. There is even one body that, while riding a horse both are skinned parades a human brain like a trophy. Another has been given wings and is hung from the ceiling, rotating like an angel. One woman, Maria, reclines on her side in a manner reminiscent of Antonio Canova’s Bonaparte as Venus Victrix. She is in the eight month of pregnancy with her stomach opened in two, and bearing a hunched foetus. Like Maria, many other bodies on display reproduce famous works of art. These aspects, along with the temporary closure of the exhibition because of 46 instances of fainting in fewer than 10 days (Jesolo, 7 Jan. 2015) are perhaps worthy of consideration in legal terms. It is impossible to deny the educational value of seeing the organs of healthy and diseased humans, including all the nerves and tissues and how the muscles facilitate movement. There is value in doing so with bodies and foetuses rather than models, to say nothing of the scientific merits of the inventor of plastination. however, being an artist, practising art and obtaining greater protection in the name of such art is another thing. According to Article 33 of the Italian Constitution, the Bodies exhibition, must be considered lawful not as art, but as science, which is also “free“. In this case, however, the specific and exclusively artistic traits of certain bodies would not be admissible in any way, because they would represent a provocation, and unlike art, science has no need to provoke. (Such an interpretation also complies with the protection of consent for plastination which, while not being subject to analysis in this paper, it should be noted that it is lawful only when for “informative” and “scientific purposes” pursuant to Arts. 13 and 32/2 of the Constitution, 50 et seq. of the Italian Criminal Code, Law 145/2001, Law 180/78, Law 833/78).

Reputation presuppos es the contingency of the life of the subject, under Arts. 594 et seq. of the Italian Criminal Code and if it comes into conflict with the freedom of expression, the latter prevails, justified by Art. 51 of the Criminal Code, when it respects criteria of continence, social interest (the right of critique. Criminal Court of Cassation 4938/2010 and 48712/2014) and truth (freedom of the press, from Criminal Court of Cassation 5259/1984). The right of satire is broader still, whereby “not only does the freedom of expression enter into discussion, but also cultural andartistic expression, under Arts. 9 and 33 of the Constitution, and is only constrained in the connection of coherence between the public realm of the subject and the expressive artistic content” (Criminal Court of Cassation 13563/1998, Civil Court of Rome 1/3/92 Cassisi and a. vs. Arbore and a., P. Rome 16/02/89 Vanzina vs. Videotime; P. Rome 5/6/91 Berlusconi vs. Espresso). Like art then, it can lead to “extreme pressure” on other fundamental rights (e.g. religion, as did Charlie Hebdo), by ridiculing them, but never crossing over into contempt.

[11] Faced with the need to address criminal offences against public security and safety, the freedom of art must give way, in fact what is true for the individual is even more true fore collective. However, prohibit a performance by artists who direct fire operations in a public square with black shirts and burning torches is not the same to remove a work of art that says “I love communism” and exhibited inside a specific display area (Museion), how initially was done in Bolzano in 2006, with Claire Fontaine’s cube, then readmitted to the exhibition. Another example is The Hanged Children by artist Cattelan, displayed hanging from a tree in Piazza XXIV Maggio in Milan in 2006, and subsequently transferred to a special location after a spectator almost died in trying to remove them, with the approval of the majority of the community. Yet in this case, cadavers were not involved, but perfect simulacra of humans, namely dummies. But the difference with the Exhibition “Bodies”, which should have been relevant on a legal level, was quite separate, namely that the art installation took place “in a public place” and “open to thepublic” with no filter between usage and the user and removing ab origine the possibility of expressing the “negative aspect” (justifying the requirements of Article 17 of the Italian Constitution, for the freedom of assembly and valid here for eadem ratio of the freedom of art. The particularly emotive contents of the Hanged Children, unlike other public statues and monuments, should have required special measures warning people about viewing it, allowing people to be free to see it or from see it, not least younger viewers.

[12] In this case, the “privilege” recognised to the freedom of art is superseded by the protection of minors under Arts. 30 and 31 of the italian constitution, 529 of the criminal code, confirmed by law 355/1975. however, this should not lead to the total preclusion of any work of art deemed to be inappropriate for minors, and a system of “degrees” can be used, where an absolute ban is the last resort (to this end, Arts. 14, Law 47/1948 and 5, Law 161/1962). Indeed, the viewing of certain images contribute towards the educational development of young people. For this reason, a public regulation should be accompanied by the intervention of parents and teachers, so that they will provide the minor with keys to understanding an artistic nude, an original or unconventional artwork as tools to “developtheir faculties, personal judgement and sense of moral and social responsibility” without being shocked (article 7, declaration of the rights of the child, 1959).

[13] Public Order interpreted as “democratic order“, which in reference to Article 656 of the Criminal Code, the Constitutional Court ruled should prevail over Article 21 of the Italian Constitution (from judgement 19/1962). Given that it is a flexible and historically variable concept, where not identified with public security and safety, it should not represent a limit to the free expression of thought (and therefore to Article 33 of the Italian Constitution), “not becausedemocratic order is not a highly essential value, but because our system proceeds from the hypothesis that free debate can only advance the pursuit of truth, including political truth and, therefore, it can never be harmful for democracy. There is an inherent danger in all of this (the Sallustian ‘periculosa libertas’): but perhaps it would be even greater the risk of ‘losing the soul’, denying dissent” (A. Cerri in Enciclopedia Giuridica for the item on public order).

[14] It is no coincidence that number 22 of the review “Sette” of the newspaper Corriere della Sera (29 May 2015) is devoted to the art market, defined as “the virtual environment where the new global aristocracy of the twenty-first century is being born“. Indeed, it was reported that last year the sales of Christie’s and Sotheby’s amounted to 14.4 billion dollars: “a staggering increase compared to 5.9 billion in 2005. Inthe spring of 2015, a possible crash was expected. And yet […] the first two weeks of May in the Big Apple witnessed something inconceivable. 6 billion dollars raised from around fifteen auctions“, (Paolo Manazza, “La nuova aristocrazia planetaria si incontra nelle gallerie d’arte e alle grandi aste“).

[15] For example, the immaterial work by Yves Klein, who sold the “vacuum” of Paris; the 4’33” composition by Jhon Cage, who “played the silence”; various artistic performances and actions. Cf. also A. Donati in “Law and art: diritto civile ed arte contemporanea“, who with specific reference to the ‘reaction’ of civil law to conceptual modern art, states “an analysis of therelationship between modern art and Law reveals, within our system, a lacuna not at a level of definitions, but at a level of concrete regulation of the transferability and eligibility for protection of the ephemeral modern artwork. This is because one must deal with a system of circulation and protection founded on the certain definable nature and materiality – the artefact – of the asset subject to purchase and protection“.

[16] In this regard, cf. Court of Venice Judgement, 23 Nov. 1968, concerning the film “Teorema” by Pasolini.

[17] Code of Environmental and Cultural Heritage, the so-called Urbani Code, Legislative Decree 42/2004 (and Legislative Decree 156/2006 and 62/2008), which enshrined the previous regulations of the Consolidated Act of 1999 and the Bottai Law 1089/1939),

[18] Article 64 Code of Cultural Heritage: “Certificates of authenticity and origin“. Anyone engaged in the business of selling to the public, of display for the purposes oftrade or brokerage aimed at selling works of painting, sculpture, graphic design or antique objects or objects of historical or archaeological interest, or otherwise regularly sells the same works or objects, is obliged to provide the buyer with documentation attesting to their authenticity or at least to their probable attribution and origin. Failing this, they should issue, in the manner prescribed by the laws and regulations concerning administrative documentation, a declaration containing all the available information as regards the authenticity or probable attribution and origin. Such a declaration, if possible relating to the nature of the work or object, is attached to a photographic copy of them.

[19] Jucker in Flash Art no. 276/2005.

[20] Law no. 633 of 22 April 1941 on the “Protection of copyright and other rights relating to its exercise”.

[22] It was introduced with the Law of Copyright but was not implemented in practice until promulgation of Legislative Decree 118 of 13.02.2006, implementing the Directive 2001/84/EC.

[23] In this regard, F. Lemme in Il Giornale dell’arte Feb. 2012 “Concerning actions for damages threatened by critics and dissenters” and P. Carbone in News-Art “The right of authentication in the art market” underline that there is no obligation on the part of art critics and foundations to certify works, for which under Article 2236 of the Civil Code, if the opinion given respects the limit of continence and is not vitiated by fraud or gross negligence, no claim for compensation can be lodged for any economic damages that originated from it, including serious damages, without prejudice to the owner’s right to appeal to a judicial authority (special section P.I.I.) for a declaratory judgement on attribution of the work de qua. The perplexities expressed by F. Lemme on the judgement of the Court of Appeal of Milan in Dec. 2002 concerning a work by Manzoni are more than founded. This based its declaratory judgement of the contested right on the opinion of a certain critic at the expense of another critic: “if Type A expresses their opinion that a work of art is or is not authentic, there are no criteria of privilege (in particular their relationship with the author) that make it possible to support or exclude the basis for that opinion“.

[24]Cf. reports from the Authentication in Art Congress, The Hague, 2014.

[25] F. Lemme “Il giornale dell’arte“, February 2012.

[26] F. Lemme in Giornale dell’arte “Returning to the problem of archives in modern art“.

[27] A cause, for example, of the recent dissolution of the authentication committees of Warhol, Motherwell, Pollock, Lichtenstein, Baquiat and Keith Haring in the USA, while in France the risk is that works of art may be destroyed if their authenticity is denied (as with the ongoing case about the painting by Chagall: M. Lang vs. Chagall Paris Committee). The proposals made at the Conference held at the National Academy of San Luca are also relevant (“The archives of modern art: what legislation and what future?”), cf. Journal of the Environmental, no. 5/2004) and the possibilities provided by new technologies in cataloguing and archiving works of art highlighted during the Second meeting day between the archives ofItalian painters and sculptors of the twentieth century (24/05/2014, Milan).

[28] Italian regulations of cultural heritage encompass all goods, both public and private, but special focus is placed on private goods for the purposes of this dissertation. Private goods, BOTH bound AND those wirh a “simple” cultural interest may leave Italian territory only with the prior authorisation of the State. It is the jurisdiction of the State to decide whether or not to issue a certificate of temporary registration (Arts. 66, 67, 71 of the Code of Cultural Heritage) or of freedom of movement (Art. 68 of the Code of Cultural Heritage) and an export licence (Art. 74 of the Code of Cultural Heritage), It is the obligation of the owner of the asset to inform [the State] of it and carry out a request. Furthermore, private works declared of cultural interest cannot be transferred abroad: in the event of sale to foreign citizens (or another act of transfer of their property or possession in any capacity) they should remain in the national territory. The State therefore become the “direct contact” of the owner for any act of protection, conservation, national and international circulation and valuation of the asset, pursuant to the regulations contained in the Code of Environmental and Cultural Heritage, Reg. EC 116/2009 amending Reg. EEC 3911/92 and Reg. EEC 752/93 (and subsequent amendments), Law 93/7/EEC, 167 TFEU.

[30] In addition to suggesting that he should go to the Pompidou to see the work Him by Cattelan.

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